State ex rel. Ginn v. Wilson

99 N.W. 336, 121 Wis. 523, 1904 Wisc. LEXIS 40

• Court: Wisconsin Supreme Court
• Decided: April 19, 1904
• Status: Published

Opinion

Dodge, . J.

The charter of Eond du Lac imposed on the board of education the duty to “establish the text-boots to be-used” in the schools. Thus was conferred a function distinctively legislative to act upon a question of policy of grave importance to the welfare of the community. The duty to-exercise such function is persistent and continuous. At every moment of time it is the right of the public, and reciprocally the duty of the board, that they see to it that such text-books are established for use as that board, in reasonable exercise - of judgment, believes to be for the general welfare. Of such a power and duty it cannot, certainly without express legislative authority, disable itself by contract nor by any resolution not to exercise it for any given period. Goszler v. Georgetown, 6 Wheat. 593; Freeport W. Co. v. Freeport, 180 U. S. 587, 21 Sup. Ct. 493; Gale v. Kalamazoo, 23 Mich. 344; Waterbury & Co. v. Laredo, 68 Tex. 565, 576, 5 S. W. 81; Gaslight & C. Co. v. Columbus, 50 Ohio St. 65, 33 N. E. 292; Lord v. Oconto, 47 Wis. 386, 2 N. W. 785; State ex rel. Cream City R. Co. v. Hilbert, 72 Wis. 184, 39 N. W. 326; 1 Dillon, Mun. Corp. § 97. The selection and establishment of school books being thus a purely legislative function which. the board is bound to exercise for the general good, there is no •clear duty imposed by law to exercise it otherwise than in accordance with their judgment and discretion as to what public welfare requires. Such action will not be dictated or controlled by courts, especially not by mandamus. State ex rel. Comstock v. Joint School Dist. 65 Wis. 631, 27 N. W. 829; State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046; New Orleans W. W. Co. v. New Orleans, 164 U. S. 471, 481, 17 Sup. Ct. 161. The decision of the trial court was clearly right.

By the Court. — Order affirmed.